Katrina Relief Leads to Some Bending of Rules

By Cindy SkrzyckiSeptember 20, 2005

The wake of Katrina has convinced some regulators that the time has come to break, or at least bend, some rules to help speed assistance to the victims of the storm.

When a Home Depot store in Hammond, La., wanted to set up a temporary gas station to provide fuel for suppliers and employees, the company approached the Environmental Protection Agency and asked regulators not to enforce all the usual pollution standards that cover pumping gas.

The store received permission to set up the station, as long as it used qualified contractors to do the work, trained store personnel to use the equipment safely, and tried to contain emissions. Because of the "enforcement discretion" the agency exercised, Home Depot could operate for the next 30 days without worrying about issues such as vapor recovery from the pumps.

The EPA extended the same courtesy to tank truck carriers who asked that the normal certification and registration process for fueling at terminals be waived in some states, so their tankers could fill up at terminals they don't normally use.

The laws regulatory agencies operate under, or sometimes the rules themselves, permit emergency exemptions. There also is a specific federal law governing disaster response that allows agencies to "modify or waive" their procedures.

So since Katrina struck, agencies have been issuing waivers to help employers get up and running, as well as cranking out grants, offering help on the ground, rescheduling public meetings and extending reporting deadlines. The actions are too numerous for anyone to track meticulously, though the Department of Homeland Security lists major waivers on its Web site.

It includes the EPA issuing a waiver to allow use of higher-sulfur fuel to supplement gas supplies, a break that has been extended to Oct. 5 in 24 states and the District.

There also are decisions that won't be found by any list, though there was much internal deliberation.

"We are not granting things willy-nilly," said John Fogarty, EPA's associate director of air enforcement. "We consider whether it's appropriate to exercise enforcement discretion in a situation that would normally be a violation." The agency has issued 11 assurances that no enforcement action would be taken for a temporary period.

The Coast Guard has approved the hiring of more foreign workers to repair damaged offshore oil rigs; the number is usually limited to 25 percent of a crew. Truckers and airline pilots involved in relief efforts are allowed to work longer hours than the rules stipulate. Employers have been absolved from sanctions if they hire victims of Katrina who lost proper documentation.

Because so many stations were off the air, the Federal Communications Commission suspended rules prohibiting educational radio and television stations from airing commercial programming. The Federal Railroad Administration set up a special docket for handling petitions from carriers seeking regulatory waivers since, the agency said, its normal procedures "do not lend themselves to quick and immediate decisions."

And the Forest Service waived the fee and the 14-day stay limit in 106 campgrounds to accommodate Katrina victims.

The Bush administration did not give the agencies any formal marching orders on how to proceed, though it said it is working with agencies to expedite relief initiatives.

"We want to make sure that no bureaucratic obstacles stand in the way of these relief efforts," said John D. Graham, who heads the Office of Management and Budget's regulatory review office. "We are also working to ensure that regulations issued in the normal course of agency business do not have unintended consequences that might impede relief from being delivered in the aftermath of the hurricane."

Others say the disaster should not be an excuse to push aside important regulatory protections.

Environmentalists, for example, are worried the administration will consider broader waivers to provisions of the Clean Air Act, especially for oil refineries, or will relax rules governing hazardous waste cleanup.

"No one wants to slow down the recovery, but there has been no input from people in the affected communities," said Erik Olson, senior attorney with the Natural Resources Defense Council. Olson said Katrina could become the "all-purpose excuse" to go ahead with efforts already underway to weaken public health standards.

But there are some rules that hold fast.

Katrina contaminated some 2,890 pounds of specialty smoked sausage and bacon made by Enslin & Sons Packing in Hattiesburg, Miss. The small company, which never had a recall in 81 years of business, had its well water tested and unacceptable bacteria were found.

Under Department of Agriculture rules, a plant cannot operate until it is "safe and wholesome." So a week ago, Enslin voluntarily recalled such products as its hickory-smoked Bowie River Swamp Hot Sausage. The facility has yet to resume operations, Enslin said, because it is "waiting on" a state agency for new test results.

Steven Cohen, an Agriculture Department spokesman, sympathized with Enslin. "This was not a deliberate attempt to produce product that was unsafe. This is 100 percent Katrina damage," he said.